Drug testing in era of legalized cannabis: Do’s and Don’ts for employers

Gov. Phil Murphy recently signed the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, a law detailing the permissible use of recreational marijuana.

NJCREAMMA legalizes recreational use of marijuana for adults over 21. The impact of NJCREAMMA on employers, and whether employees can be active users of marijuana, is significant.

NJCREAMMA prohibits employers from taking adverse employment actions against employees because of the presence of cannabinoid metabolites in their bodily fluids. That is, employers cannot refuse to hire, discharge or otherwise discipline an employee because they use cannabis. Nevertheless, NJCREAMMA also explicitly recognizes an employer’s right to maintain a drug-and-alcohol-free workplace and enforce policies prohibiting the use or intoxication of cannabis during work hours.

Here is question-and-answer content on the new rules and regulations:

Q: Can employers drug test employees for cannabis?

A: Yes, if the employer:

  • Has a reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
  • Finds observable signs of intoxication at work related to usage of a cannabis item;
  • Conducts the test following a work-related accident subject to investigation by the employer.

Q: Is the ordinary blood, urine or saliva test still permissible?

A: No. Cannabis remains detectable in bodily fluid for a longer period of time than most drugs. As a result, a positive blood, urine or saliva test result only indicates the likelihood of prior use, without revealing when the cannabis was actually consumed. Therefore, these tests cannot differentiate between employees who permissibly consumed cannabis outside of work hours and those who impermissibly consumed cannabis during work hours.

For this reason, a drug test to determine whether an employee used cannabis while performing their work responsibilities must include both 1) a form of scientifically reliable objective testing methods and procedures, such as testing of blood, urine or saliva; and 2) a physical evaluation to determine the employee’s state of impairment.

Q: What does the physical test require?

A: The physical test must be conducted by an individual who has completed a Drug Recognition Expert program provided by a Police Training Commission-approved school or another program with substantially equivalent requirements.

The training and certification process has not yet been developed. The Cannabis Regulatory Commission, in consultation with the Police Training Commission, will issue regulations describing the standards for the certification, including curriculum courses of study. Until those are developed, it seems risky for an employer to take action against what appears to be an employee intoxicated by marijuana.

Q: What about employees in safety-sensitive jobs?

A: There is no exception in NJCREAMMA for employees in safety-sensitive job positions. Employers must follow the same rules for employees in safety-sensitive positions.

Q: What if NJCREAMMA impacts my federal contract?

A: If compliance with NJCREAMMA results in a provable adverse impact on an employer who is subject to the requirements of a federal contract, then the law permits employers to revise employee prohibitions consistent with federal law, rules and regulations. Employers may test and take action against employees with marijuana in their system if this is a condition imposed by a federal contract.

Q: Can I conduct random drug tests?

A: It depends. Random drug tests are not permitted, except for employees in safety-sensitive positions. However, NJCREAMMA includes a special rule for cannabis testing — employers may conduct random drug testing for cannabis as part of a pre-employment screening or regular screening of current employees to determine use during work hours.

However, as is recommended even outside of cannabis, employers must ensure that:

  • Testing procedures allow as much privacy as possible;
  • Testing is limited to the measures needed to determine the presence of the prohibited drugs; and
  • Information is kept confidential.

Employees must also receive advance notice of the drug-testing program, details about how employees will be selected, an explanation of how the test will be analyzed, a warning about the lingering effects of drugs in the system, notice about the consequences of testing positive and notice about the consequences for refusing to be tested.

Meghan O’Brien is an associate in Archer’s Labor & Employment practice group, working primarily out of the firm’s Haddonfield office.